Hof van cassatie van België / Cour de cassation de Belgique, 31 January 2002 - The effect of avoidance in bankruptcy as against a third party acquirer in good faith

Abstract

The case decided by the Belgian Hof van cassatie/Cour de cassation on 31 January 2002 concerns the effects of avoidance in bankruptcy of an impeachable transaction by the bankrupt debtor disposing of assets, and especially the conflict with a subsequent acquirer of these assets. The bankrupt debtor (Transport de Koning) had transferred shortly before bankruptcy a trailer in lieu of payment to its creditor Diemotrans. Diemotrans had sold and delivered the trailer shortly after bankruptcy to a subsequent buyer in good faith, the LLC André. The insolvency administrator (Driessen) asked the court for a declaration of ineffectiveness of the transaction vis-à-vis the creditors and a condemnation of LLC Andre to restitute the trailer to the bankrupt estate. The Court decided that the claim of the insolvency administrator fails insofar as the conditions for bona fide acquisition by LLC Andre are met (actual possession and good faith).